Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
June 13, 1985
JIM MATTOX
Attorney General
Supreme Court Building Honorable Carlos Valdez Opinion No. JM-324
P. 0. Box 12549 Nueces County Attomey
Austin, TX. 79711-2549 County Courthouse, Raom 206 Re: Uay a county fund an educa-
5121475-2501 Corpus Christi, Tems 78401 tional campaign to discourage
Telex 9101974-1397
Telecopier 5121475-0266
public litter, and related
questions
714 Jackson. Suite 700 Dear Mr. Valdez:
Dallas. TX. 75202-4506
2141742-0944
Your office advises that the Nueces County Commissioners Court
has been asked to I~artiallyfund a nonprofit corporation that conducts
4824 Alberta Ave., Suite 160 area-wide educational programs for the abatement of litter and trash,
El Paso, TX. 79905-2793 and which on occasion also organizes volunteers for specific cleanup
9151533.3494 activities, and fox the distribution of litter and refuse recepticles
in the area. You ask if the county may legally supply funds to the
1001 Texas. Suite 700
organization for suc:h purposes.
Houston, TX. 77002-3111
713/223-5886 Article III, section 52 of the Texas Constitution reads in
pertinent part:
606 Broadway, Suite 312
Lubbock, TX. 79401-3479
(a) I$:cept as otherwise provided by this
8061747-5239 section, ,the Legislature shall have no Tower to
authorize any county, city, town or other
politica:.corporation or subdivision of the State
4309 N. Tenth. Suite B
to lend j.ts credit or to grant public money or
McAlle”, TX. 79501-1695
5,2/692-4547
thing of value in aid of, or to any individual,
associat::on or corporation whatsoever, or to
become a stockholder-in such corporation, associa-
200 Main Plaza. Suite 400 tion or company.
San Antonio, TX. 78205-2797
512/2254191
The only exceptions "othewise provided" allow the lending of credit
for certain purpomg upon a vote of residents. (A tax to service any
An Equal OppOrtUnitY/ indebtedness assumed must be established.) Those purposes, however,
Affirmative Action Employer are limited to improvement. construction, maintenance or operation of
waterways, bodies of water, or roads and turnpikes. None of the
exceptions purport 1:opermit grants of money; they make exception only
for "lending of credit" in certain situations. And none make
exception expressl:rfor purposes of the control or abatement of trash
or litter.
p. 1481
Honorable Carlos Valdez - Page 2 (JM-324)
Inasmuch as counties pos~!ss only those powers given them by the
Constitution of Texas or st,atutes enacted pursuant thereto, Tex.
Const. art. V, 918(b); Canales v. Laughlin, 214 S.W.2d 451 (Tex.
1948). and inasmuch as thz&slature is prohibited by article III.
section 52 of the Texas Constj.t.ution
from authorizing a county to make
a gratuitous e of funds to a corporation for any purpose, the
Nueces County CormnissionersCourt may not make an unrestricted grant
to the nonprofit corporation for the purpose of funding its operations
in whole or in part. See Tex. Const. art. XI, 53; Attorney General
Opinions JM-103 (1983);%32!1 (1981); R-1189 (1978); H-397 (1974).
Notwithstanding the above, a county is not prevented by article
III. section 52 or article XI, section 3, of the Texas Constitution
from using a nonprofit corpomtion as an instrumentality to accomplish
a proper county purpose so lmng as it retains, by contract or other
means, sufficient control of the matter to assure that the public
purpose will be served. See .Attomey General Opinion JM-103 (1983).
If an educational progracior the abatement of litter and trash
cleanup activities, and the placement of receptacles for litter and
refuse, is a program which t‘le county itself might lawfully conduct,
it can contract in good fait‘1to pay a nonprofit corporation for its
help in accomplishing that purpose. -See Attorney General Opinion
JM-65 (1983).
We believe the Litter Abatement Act, coupled with the declaration
in section 1.07 of article 4414b. V.T.C.S., that the
commissioners court of any county shall have the
authority to appropriate and expend money from the
general revenues oji its county for and in behalf
of public health and sanitation within its county,
furnishes ample authority for the commissioners court of Nueces County
to conduct a public educaticnal campaign designed to abate littering
in the county.
The Texas Litter Abatenlent Act, article 4477-9a. V.T.C.S., was
enacted in 1981 to take effect in 1982. Acts 1981, 67th Leg., ch. 741
at 2710. It makes it a crilne to dispose of trash, junk, garbage,
refuse, unsightly matter, or other solid waste on a public highway,
right-of-way, or on other prblic or private property without written
consent, or into any inland or coastal waters of Texas. And the
provision is enforceable by z.
law enforcement o!ificer of this state or of a
political subdivision of this state or a health
officer of a municipality authorized by law to
regulate matters of sanitation and public
health. . . .
p. 1482
Honorable Carlos Valdez - Page:3 (JM-324)
V.T.C.S. art. 4477-9a. $2.Ol(ii).
Another section of art:;cle 4477-9a makes it illegal to dump
untreated or unprocessed litter or refuse within three hundred yards
of a state highway, even if At is done by a municipal corporation or
by the owner of the land, or tly someone with the owner's consent. Id.
$2.04(c). A county or distr1c.tattorney may bring suit to preventx
restrain a violation of the neiction. Id. 52.04(g). In our opinion,
these provisions clearly imply power incounty officials to discourage
littering and, in fact, make it the duty of the county to prevent
littering.
The possibility of a ntbxus between public health and litter,
trash, refuse, rubbish, junk 'KC garbage is not doubted. See Attorney
General Opinions JM-65 (1983); H-1280 (1978). Cf. Pricey City of
Junction, 711 F.2d 582 (5th ~Cir. 1983). We believe, therefore --
particularly if the commissLoners court finds as a fact that a
campaign against litter would prevent a deterioration of public
health, or serve to improve il.-- that the expenditure of county funds
for the purpose of preventing public or private litter is authorized
by the ststutes of this stat!?..A contract with a private nonprofit
corporation whereby the count)'provides funds in return for the aid of
the organization in accomplishi,ngthat purpose would not be prohibited
so long as the contractual prT{isions assure receipt by the county of
an adequate quid pro quo designed to further that end. -Cf. Attorney
General Opinion H-1123 (1978).
6,UHMARY
--
A publicly funLe,d contract with a private
nonprofit corporation to aid Nueces County in
preventing public or private litter is not
prohibited so long as the contractual provisions
assure receipt by the county of an adequate quid
pro quo designed to s,ccomplishthat purpose.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
p. 1483
Honorable Carlo6 Valdez - Page 4 (~~-324)
ROBERT GRAY
Special Assistant Attorney Gen,eral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Bruce Youngblood
~1.1484